Citation Nr: 1122702 Decision Date: 06/13/11 Archive Date: 06/28/11 DOCKET NO. 08-25 642 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to service connection for basal cell and basosquamous carcinomas of the right ear and basal cell carcinoma of the tip of the nose, claimed as due to radiation exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1946 to November 1947. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the RO. During the course of his appeal, the Veteran was testified at a hearing at the RO before a Decision Review Officer (DRO) in July 2008. The Board remanded the case to the RO in January 2001 in order to schedule the Veteran for another hearing. In April 2011, the Veteran testified at a hearing conducted at the RO before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. During the hearing, the Veteran testified that he recently had been treated for a lesion of the right cheek. Since this matter has not been initially addressed for the purpose of appellate review, it is referred to the RO for appropriate action to include any indicated development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is found to have presented credible lay assertions to establish that he served about 10 miles from Hiroshima for about two months and visited the city in early 1947 during the occupation of Japan after the detonation of the atomic bomb during World War II. 2. The currently demonstrated residuals of basal cell and basosquamous carcinomas of the right ear and the residuals of basal cell carcinoma of the tip of the nose are shown as likely as not to be due to the exposure to ionizing radiation or "actinic radiation" incident to the Veteran's service to include during the occupation of Japan after World War II. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by the residuals of basal cell and basosquamous cell carcinomas of the right ear and basal cell carcinoma of the tip of the nose is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). To the extent that the action taken hereinbelow is fully favorable to the Veteran, further discussion of VCAA is not required at this time. Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. §3.303(b) (2010). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. §3.303(d) (2010). Service connection for a disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Hilkert v. West, 11 Vet. App. 284, 289 (1998). First, a rebuttable presumption of service connection arises if "radiation-exposed veteran" later developed one of the radiogenic diseases listed in 38 C.F.R § 3.309(d). See 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(d). These diseases are ones in which the VA Secretary has determined that a positive association with radiation exposure exists. The diseases listed in 38 C.F.R. § 3.309(d)(2) cited above are as follows: (i) leukemia (other than chronic lymphocytic leukemia); (ii) cancer of the thyroid; (iii) cancer of the breast; (iv) cancer of the pharynx; (v) cancer of the esophagus; (vi) cancer of the stomach; (vii) cancer of the small intestine; (viii) cancer of the pancreas; (ix) multiple myolomas; (x) lymphomas (other than Hodgkin's disease); (xi) cancer of the bile ducts; (xii) cancer of the gall bladder; (xiii) primary liver cancer (except if cirrhosis or hepatitis B is indicated); (xiv) cancer of the salivary gland; (xv) cancer of the urinary tract; (xvi) bronchiolo-alveolar carcinoma; (xvii) cancer of the bone; (xviii) cancer of the brain; (xix) cancer of the colon; (xx) cancer of the lung; and, (xxi) cancer of the ovary. A "radiation-exposed veteran" is a veteran who was involved in a "radiation risk" activity during active service, as defined in 38 C.F.R. 3.309(d)(3)(ii). This includes veterans who were involved in the occupation of Hiroshima or Nagasaki during the period beginning on August 6, 1945 and ending on July 1, 1946. 38 C.F.R. § 3.309(d)(3)(ii)(B). The term "occupation of Hiroshima or Nagasaki" means official military duties within 10 miles of the city of Nagasaki. 38 C.F.R. § 3.309(d)(3)(vi). Second, service connection may be established if (a) a radiation-exposed veteran develops a "radiogenic disease" that (b) became manifest within the time period defined for that disease by 38 C.F.R. 3.311(b)(5), and (c) if, after following special development procedures, the VA Undersecretary for Benefits determines that a relationship in fact exists between the disease and the Veteran's exposure in service. In this regard, if a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and include skin cancer, as well as any other cancer. 38 C.F.R. § 3.311(b)(2). Third, service connection may be established by competent evidence showing the existence of a medical nexus between the claimed condition and exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To establish a service connection for an injury, a veteran is required to show (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). In cases where the veteran cannot establish some of these elements, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the a veteran is required to show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran asserts that his skin cancer is due to radiation exposure while serving in Japan after the atomic bombing of Hiroshima. Specifically, he reports being stationed in Yokohama, Japan, but actually serving near Kure, Japan about 10 miles from Hiroshima. The Veteran also testified that he visited Hiroshima itself while in Japan. Of preliminary importance, the Board recognizes that skin cancer is not included in the list of diseases that may be presumptively service connected under 38 C.F.R. § 3.309(d). The service records do show that the Veteran arrived in Japan on November 22, 1946 and departed on October 29, 1947, and was assigned to Company B, 304th Signal Operations Battalion at Yokohama, Japan. The DD Form 214, Certificate of Release or Discharge from Active Duty, lists his military occupational specialty (MOS) as radio repairman. A July 2007 letter from the Defense Threat Reduction Agency (DTRA) includes findings that the Veteran departed the United States for duty in the Asia-Pacific theater of Operations on November 8, 1946, arrived in Japan on November 22, 1946, and departed on October 29, 1947. Here, the DTRA determined that the criteria for the Nuclear Test Personnel Review (NTPR) Program were not met, as the Veteran was not confirmed as a member of the American occupation forces in Hiroshima or Nagasaki for the period from August 6, 1945 to July 1, 1946. However, the available service treatment records show that the Veteran was rendered medical attention in Yokohama, Japan, in February 1947, for acute, severe dermatitis of both forearms due to possible DDT spraying. Further, the service treatment records, dated in 1947, indicate that the Veteran received medical attention from the 332nd Medical General Dispensary, Army Post Office (APO) 503, for complaints of dermatitis of the face and neck, an erythematous rash and allergic dermatitis. While the cause of the skin manifestations exhibited in service is not clear from the record, it is some evidence to show that the Veteran likely sustained potentially pathological skin damage consistent with harsh environmental conditions, including the exposure to harmful amounts of sunlight during service. The Board also finds that the Veteran has presented competent and credible testimony at his recent hearing to corroborate to nature of his service in Japan after World War II as a member of the occupation forces. Moreover, his statements about avoiding excessive sun exposure in the years after service are significant in addressing question of the likely etiology of the claimed skin cancer. The Veteran's statements tend to show that his duties included occupation activities that as likely as not involved his being present for about two months in the vicinity of Hiroshima (reportedly about 10 miles from the city) and visiting that location on at least one occasion. A July 2008 statement from one of the Veteran's treating private physician's reflected a history of the Veteran being stationed at a location about 10 miles from Hiroshima for two months, approximately one year after the atomic bomb detonation. Significantly, the physician noted that, in 1996, he had treated the Veteran for a tumor on his right ear that was a basosquamous carcinoma and was surgically removed and had then treated him on subsequent occasions for other skin cancers, as well as precancerous lesions. The physician opined that it was "well known and accepted" that radiation from the atomic bomb could cause skin cancer and that the most common cause of these types of tumors was "actinic radiation." The physician concluded that it was possible that both types of radiation could have been involved in the types of lesions the Veteran had. More recently, a private surgeon who had performed MOHS Micrographic surgery on the Veteran reported in a statement dated in February 2010 that he had treated him for a basal cell carcinoma on the right scaphoid fossa of the ear. The physician opined that this type of skin cancer could be caused by "radiation from an atomic bomb" to which the Veteran had been exposed during his service in Japan. In addition, the record includes written material provided to the Veteran in connection with his treatment for skin cancer. It was noted that most skin cancers, including basal cell and squamous cell carcinomas, involved the head and neck or areas most frequently exposed to sunlight, which was "the most important factor in causing skin cancer" and was why very fair-skinned people tended to develop more of these malignancies. Significantly, it was noted that another of the factors related to the development of skin cancers was "radiation." Other treatment records show that, in addition to noted lesions involving the right ear, the Veteran underwent a procedure for a basal cell carcinoma involving the tip of his nose in February of the nose in February 2006. While the Veteran testified at the recent hearing that he had surgery for a lesion on the right cheek in January of 2011, no records referable to this treatment have been presented. The Board finds on review of the entire record that the July 2008 and February 2010 private medical statements constitute probative and dispositive evidence as to the medical question presented in this appeal. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). In light of the Veteran's credible assertions of serving near and visiting Hiroshima shortly after World War II as part of the occupation of Japan and the submitted medical statements provided by his treating physicians generally linking the development of his documented skin cancers to specific causative factors of the exposure to ionizing radiation and "actinic radiation" or sun exposure consistent with conditions of his service, the currently demonstrated residuals of the basal cell and basosquamous cell carcinomas of the right ear and the basal carcinoma of the tip of nose are shown as likely as not to be due to disease or injury that was incurred in his active service. Hence, in resolving all reasonable doubt to the Veteran, service connection for the residuals of basal cell and basosquamous cell carcinomas of the right ear and the basal cell carcinoma of the tip of his nose is warranted. ORDER Service connection for the residuals of the basal cell and basosquamous cell carcinomas of the right ear and the basal cell carcinoma of the tip of the nose is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs